Automated Summary
Key Facts
The 1st Defendant applied to garnish funds held by the Judiciary at the Central Bank of Kenya. The Judiciary confirmed holding Kshs. 20,094,817.45 on the Plaintiff's account. The Plaintiff argued the application violated procedural requirements under Order 21 and 23 of the Civil Procedure Rules, specifically the absence of a certified decree and an order Nisi. The court found the application meritorious, noting that procedural non-compliance (e.g., no order Nisi) was not fatal as the necessary information was provided, and the funds were confirmed. The court ordered payment of Kshs. 5,685,395 to the 1st Defendant for taxed costs.
Issues
- The second issue addresses the failure to serve an order nisi on the garnishee as required by Order 23 of the Civil Procedure Rules. The Plaintiff contended that the absence of an order nisi rendered the application legally untenable, but the court found that the Notice of Motion provided sufficient information and the garnishee affirmed the claims.
- The first issue concerns whether the garnishee application was validly made without a properly extracted decree under Order 21 of the Civil Procedure Rules. The Plaintiff argued that the application sought execution of a decree without the required extraction, but conceded that the decree was later issued and certified.
Holdings
Accordingly I find the application by the 1st Defendant meritorious and grant an order in terms of prayer No. 2 of the Notice of Motion dated 13th November 2012 and award the costs of the application to the 1st Defendant.
Remedies
The court found the 1st Defendant's application meritorious, granted an order in terms of prayer No. 2 of the Notice of Motion, and awarded the costs of the application to the 1st Defendant.
Monetary Damages
5685395.00
Legal Principles
The court relied on the principle of 'Substance over Form' as outlined in Sections 1A and 1B of the Civil Procedure Act and Article 159 (2)(d) of the Constitution. Despite procedural defects in the garnishee application (not serving an order nisi), the court found the application meritorious, emphasizing the need to deliver substantive justice expeditiously without being constrained by procedural formalities. This aligns with the doctrine that courts should focus on the essence of justice rather than rigid adherence to technical procedures when the outcome remains equitable.
Cited Statute
- Civil Procedure Rules
- Civil Procedure Act
- Constitution of Kenya
Judge Name
J. M. Mutungi
Passage Text
- In the present application it is clear that the plaintiff was adjudged to pay the taxed costs to the 1st Defendant and the judiciary has admitted it holds the stated amount on account of the plaintiff as claimed by the 1st Defendant.
- The court under Sections 1A and 1B of the Civil Procedure Act and Article 159 (2) (d)... rendered the application by the 1st Defendant fatally defective.
- Accordingly I find the application by the 1st Defendant meritorious and grant an order in terms of prayer No. 2 of the Notice of Motion dated 13th November 2012 and award the costs of the application to the 1st Defendant.